September 30, 2008

Not Biting

"Every
day we're amazed at how victories in court don't necessarily lead to
settlements. We really need the courts to help force these parties into
settlement talks. We're not having as much momentum in signing new business
as we've liked."

September 29, 2008

Tanked

Praxair sued Advanced Technology Materials (ATMI)
for infringing three patents:
6,007,609;
6,045,115; and
5,937,895. All claim pressurized storage tanks. '609 and '115 went down on
inequitable conduct, '895 on §112 ¶2 indefiniteness. On appeal, '609 and '895
popped back up from the grave, while '115 remained buried in a 2-1 split
decision. Herein, the CAFC in full caprice.

September 28, 2008

Life Support

Transmeta,
a creative Silicon Valley chip designer, had a promising future when it started
in 1995. It developed CPUs with low power consumption, perfect for laptops.
Intel infringed its patents, thus undercutting Transmeta's marketing edge.

Flashback Foresight

World War II was coming to an end, Bing Crosby was playing on the radio, and Patent Office Commissioner Casper W. Ooms was professing:

It has been brought to my attention that the practice prevails [in] the Patent Office of measuring the "amount of work accomplished" by Assistant Examiners during particular periods of time by assigning quotas of production.... This practice necessarily emphasizes quantity rather than quality of work.

September 26, 2008

In the Fire

Broadcom
and Qualcomm have a cell phone chip patent war going on. A major
clash was appealed, with blood spilled.

Broadcom got a permanent injunction, even though it didn't practice the
claimed invention. While the courts found it "generally in the public interest
to uphold patent rights," an injunction would not have been granted if not for
giving Qualcomm a "sunset provision" to wean itself from infringement. This
ruling could be a roadmap for future injunctive relief.

Inducing infringement was rehashed. Unlike willfulness, where a clearing
opinion means nothing, it can mean something when considering inducing
infringement, which "may be established through circumstantial evidence,"
considering the totality of circumstances.

Further, the CAFC found obvious error with district court claim construction.
Further evidence of a trial court system ill-equipped for patent cases. On
appeal, Broadcom made one of the most bizarre claim construction arguments
possible: that if a claim were properly construed, it would be
prima facie invalid in light of cited prior art, ergo, could not construed that way.
So what, the court ruled. It's invalid.

September 25, 2008

Sound & Fury

AT&T
developed digital audio compression technology, for which it got patents. In
1988, to further the work, AT&T entered a joint development agreement with
German company Fraunhofer Gesellschaft. The result was the MP-3 standard, as
well as more patents covering the standard.

September 24, 2008

Moral Hazard

This
is a patent weblog, so pardon me. But the proposed $700 billion dollar bank
bailout plan is astonishing in its giveaway to the financial industry. It's
nothing but a bank holiday with taxpayers footing the tab.

Let the banks fail. Greedy bastards made their bet, let them go bankrupt.
It's called capitalism, the system this country supposedly has. You take the
risks, you reap the rewards, you pay the costs. Home of the brave and the free
to win or lose.

Clay Pigeon

Benjamin Henrion, initiator of the StopSoftwarePatents coalition effort,
explains "The aim behind StopSoftwarePatents is to gather a worldwide
coalition of businesses and civil society in order to get laws which clearly
exempt software from patentable subject matter. This is the best solution
for getting rid of 'patent trolls' and uncontrollable legal risks generated
by software patents. The day the software industry forms a clear front
against software patents will be the beginning of the end for the 'patent
trolls'."

September 23, 2008

No Petty Bone

Electronic
game machine maker Aristocrat sued International Game for
infringing
7,056,215, a blemished patent. The blemish was to
futz reviving the
patent application after abandonment during prosecution. The district court turned the blemish to cancer,
killing the patent. The appeals court was more patient.

September 22, 2008

Designing Law

Egyptian
Goddess sued Swisa for design patent infringement. The Goddess stumbled.
On appeal, in
a 2-1 panel brawl, the CAFC ginned up a new standard for design patent
infringement. En banc rehearing resulted in the CAFC rebuffing itself, with the
design patent standard for infringement rewound to 1871.

September 21, 2008

Microsoft's Patent Tax

Microsoft
appears to have mastered the art of
the patent squeeze. A recent
convert from being something other than a patent piñata, since 2003, the
inception of its patent licensing program, Microsoft has wrestled 500
cross-licensing agreements from a wide variety of technology companies.
Invariably the grateful recipient pads the Big Softee's kitty with a pittance
for the privilege of peace of mind, that Microsoft won't hammer it with a patent
infringement suit. Practically all of the licensed, with rare exception, are Microsoft
customers. This past week, Pioneer was the 15th Japanese company to pony up.

September 20, 2008

Accel Excels

Having
recently completed an
Accelerated Examination filing, I am convinced that this is the way to go,
especially under ideal circumstances. Accelerated Examination (AE) has taken
quite a lashing on this blog, with one muffin-head
professing: "Forget accelerated examination. Accelerated examination is an
act of desperation for both the patent office and applicant." Personally, I am left rather
touchy-feely about its prospects.

September 19, 2008

Buffaloed

CSIRO sued Buffalo in the Eastern District of Texas for infringing
5,487,069,
claiming a technique for wireless networking. After claim construction,
cross-motions for summary judgment left Buffalo holding the short straw: the
patent valid and infringed. On appeal, obviousness is given a different take.
Obzilla awakens for another snack.

September 18, 2008

Packaged

Tessera
asserted semiconductor chip packaging patents against Siliconware, Motorola, and
Qualcomm, including
6,433,419. Patent Hawk was put on
the case. Reexamination ensued. '419 rejection is now final, and heading to the
patent appeals board.

September 17, 2008

The Black Bird

Nathan Myhrvold [of Intellectual Ventures] has quietly amassed a trove of
20,000-plus patents and patent applications related to everything from
lasers to computer chips. He now ranks among the world's largest
patent-holders -- and is using that clout to press tech giants to sign some
of the costliest patent-licensing deals ever negotiated.

September 16, 2008

Inexhaustible

Hapless
Excelstor, a Chinese company, wanted to sue its patent licensor, Papst, for not
notifying it of a patent license agreement that Papst had for the same patent
Excelstor licensed. The district court pitched the case for lack of subject
matter jurisdiction. The appeals court affirmed, with a bit of patent law 101,
namely, that the patent exhaustion doctrine is not a cause of action.

September 15, 2008

Peer-to-Pissant

A
Peer-to-Patent email, picked up by several newspapers:

Some of the biggest players in the technology industry complain that the
U.S. patent system is broken -- putting too many patents of dubious merit in
the hands of people who can use them to drag companies and other inventors
to court.

Some of the biggest players in the technology industry are looking to ease
infringement cost by gutting patent enforcement. And they can't help but taint their
shiny little project aimed at improving examination with propaganda tripe. Not a class act
in the least.

ROI

Beyond
simple counting, number fumbling is a human constant. Wall Street floats on an
ocean of dumb money. And bean counters, the pros that run the banks... Well,
let's just observe that the deepest and longest lasting recessions/depressions
in this country have been lit by what is quaintly referred to as a "bank panic."
We're in the middle of one right now. So, in that spirit of "lost in figures,"
Maureen Farrell at Forbes spotlights "Universities
That Turn Research Into Revenue."

September 13, 2008

Going Down the 112 Way

Following up on his
§101 ramble,
USPTO policy maven John
Love put out the hard word in a memo duet on §112: ¶2 indefiniteness for numeric
imprecision, and for means claims, which nominally fall under ¶6.

September 12, 2008

Scarecrow

Duratech
Industries jumped the gun and got North Dakota district court to grant
non-infringement declaratory judgment protection from
6,375,104, owned by Bridgeview Manufacturing. '104 claims a hay bale
handler. But Duratech put up a straw man for claim construction, construing a
means-plus-function limitation that wasn't. Appeal was a roll in the hay for
Bridgeview.

September 11, 2008

On Display

Medical Solutions (MSI) sued C Change Surgical (CCS) for patent infringement
"because CCS both "used" and "offered to sell" the allegedly infringing product
at [a] trade show." MSI had sued CCS in D.C., where the trade show was. But
neither company is based there. The district court pitched the case, because of
lack of evidence that CCS had used, or offered to sell, the allegedly infringing
product. The district court disallowed additional discovery. While jurisdiction was at issue
here, more interesting was CAFC musing on
what constituted "use" for patent infringement.

The general right of a firm freely to determine with whom it will and
will not deal was first established by the Supreme Court nearly nine decades
ago. In its 1919 Colgate decision, the Supreme Court observed that
"[i]n the absence of any purpose to create or maintain a monopoly, the
[Sherman Act] does not restrict the long recognized right of [a] trader or
manufacturer engaged in an entirely private business, freely to exercise his
own independent discretion as to parties with whom he will deal." The Court
reaffirmed that principle eighty-five years later in Verizon
Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, where,
citing Colgate, the Court affirmed dismissal of an action alleging
that non-compliance with state and federal regulations mandating the sale of
services to rivals violated section 2. In Trinko, the Court noted
that, "as a general matter," the antitrust laws impose no duty upon a firm
to deal with rivals.

September 9, 2008

Educational Savvy

From a public-interest standpoint, the blessing of blogging has been to demonstrate
how the mainstream press is filled with hacks on assignment. While bloggers live
and breathe their subject matter, "professional"
media do topical cameos, resulting in nicely wrapped provocative stories, at a slanted angle, but with a
garnish from "the other side" for the illusion of a "fair and balanced"
perspective. This week we have Janet Rae-Dupree for the New York Times, wistful
in "When Academia Puts Profit Ahead of Wonder:" "In academia's continuing pursuit of
profit, the wonder of simple serendipitous discovery has been left on the curb."

Growing Green

Eco-Patent Commons, a portfolio of environmentally-friendly patents pledged to the public domain, originally announced in January, grew greener yesterday, with the addition of patents from Xerox, DuPont and Bosch, more than doubling the number of enviro-pats now freely available.

September 8, 2008

Written Description Bug

5,126,270
and continuation
6,017,745, claim turning bacteria into enzyme factories. Patent owner
Carnegie Mellon University sued Roche for infringement. Roche got a
claim construction that led to summary judgment of non-infringement, and
invalidity for "lack of written description in light of...
Regents of University of California v. Eli Lilly", with Gentry
Gallery v. Berkline riding shotgun. On appeal, the CAFC met the written
description requirement on meeting the written description requirement. And
relegated to the unremarkable the earlier § 112, ¶ 1 ruling,
Gentry Gallery.

September 5, 2008

Just Walk Away PA

PA
Advisors got its hands on
6,199,067, saddled up the palomino, and rode on down to East Texas, aiming
to get a little from Microsoft subsidiaries, Google, Yahoo!, Facebook, and
others. After chatting with Facebook, PA took a powder, deciding not to pursue
the suit further. No coin changes hands. Each party bears fees and costs.

September 4, 2008

Old Art Never Dies

A
common patent litigation strategy has been to seek reexamination after losing in
court, as in the case herein. Defendant counsel has more rhetorical power before
the court, as contrasted to a single injection to the PTO for reexam, after
which the patentee tries to hold granted ground while an infringer watches from
the sidelines. And a post-verdict reexam is as much for spite as anything, as it
doesn't necessarily turn back the clock.

Today's CAFC ruling should flip the litigation-first/reexam-last-ditch
strategy on its head: scorching prior art search to reexam first, pleading a
stay of litigation pending reexam outcome. That's because court validation is
not subject to reconsideration from PTO invalidation, but a PTO kill terminally
damns. Further, previously cited art can be rehashed in reexam.

Laying yet another brick of fortification against junk patents, the
CAFC clarifies the power of reexamination as a "quality check."

September 2, 2008

Kneed

Orthopedic
implant makers Howmedica Osteonics and Wright Medical got into a patent
brawl. They settled. A few times. Sort of. Howmedica sued again over
5,824,100, claiming a knee prosthesis, and lost its infringement kick on
claim construction, which it appealed. Ambiguous claim language led to a
construction Mexican standoff in the courts.

Fire Eater

Patents
become a public nuisance when worth a pretty penny. Hal Wegner thinks the price
tag of infringement should have flamed the NTP patent reexaminations.
"With a $600 million plus settlement in one litigation coupled with ongoing
litigations against other alleged infringers, BlackBerryGate represents a
billion dollar... patent tax on the public. Yet, the reexamination drags on... and
on... and on." Having granted patents, found valid through the fire of litigation,
the PTO ought to burn the midnight oil to staunch further enforcement. "A
fiasco," Wegner laments.

Down with the Docket

With
its natural panache of rip and snort for the court, the Statistics Division for
the Administrative Office of U.S. Courts released its annual report: "Judicial
Business of the United States Courts." Using the hoary Roma
system, the latest stats run in a calendar year skewed to September 2007. 2,896 patent
complaints in 2007, up a 2.3% bit from 2006 (2,830), with 250 filed in the
Eastern District of Texas. 2004 was the bumper crop, at 3,075. 408 patent suits
celebrated 3 years on the docket in 2007, up from 353 in 2006. 34 USPTO BPAI
decisions pending appeal before the CAFC, down from 51 the previous year. The
reversal rates on appeal ran less than 20% in 2007, both from district court and
BPAI, quite a dip from earlier times.

Sponsored by

"A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. The analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." - SCOTUS in KSR, 2007 -

"Words ought to be a little wild, for they are the assault of thought on the unthinking." - John Maynard Keynes -

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